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WEISS v. JACOBS (12/05/61)

December 5, 1961

WEISS
v.
JACOBS, APPELLANT.



Appeal, No. 177, March T., 1961, from judgment of Court of Common Pleas of Washington County, Feb. T., 1959, No. 457, in case of Jerry Weiss v. Della M. Jacobs et al. Judgment reversed.

COUNSEL

William Claney Smith, with him August L. Sismondo, for appellant.

Milton D. Rosenberg, with him Bloom, Bloom & Yard, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Alpern

[ 405 Pa. Page 391]

OPINION BY JUSTICE ALPERN.

This case is before the court on appeal from the Court of Common Pleas of Washington County. The appellant, Frank C. Jacobs, Jr., was convicted and sentenced by the lower court on a charge of contempt of court. He is appealing to this Court the adjudication of contempt and the imposition of a sentence by the lower court involving a fine and costs.

The appellant is one of five defendants in a trespass action brought by a certain Jerry Weiss, which is pending in the Court of Common Pleas of Washington County. At the time of the accident out of which the cause of action for trespass occurred, the appellant was a resident of Washington County. However, at the time of the incident from which the contempt action

[ 405 Pa. Page 392]

    arose he was a resident and citizen of Morristown, New Jersey.

On February 27, 1961, the plaintiff in the trespass action gave notice to the appellant and to the other defendants of his intention to take depositions on March 24, 1961. The date for the depositions was extended by agreement of counsel to April 7, when all defendants appeared for the deposition except Frank C. Jacobs, Jr.

No subpoenas had been issued for the depositions of April 7, 1961. However, after the appellant did not appear for the depositions of April 7th, he was served with a subpoena during a visit to Philadelphia. This subpoena commanded him to appear for a deposition to be taken of him on April 29, 1961 in Washington County.

On advice of counsel, the appellant did not appear at the deposition which was scheduled for April 29th. The reasons asserted for defense counsel's advice were that he believed that a proper subpoena was not issued or served on the appellant; and that no notice under Pennsylvania R.C.P. No. 4007 was filed or served for the deposition of April 29th. No order of the court was obtained to change the original date of ...


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